Trajkovski v The King - [2024] VSCA 271

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0189

STEVEN TRAJKOVSKI	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P and WALKER JA
WHERE HELD	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF REASONS:	15 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 271

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CRIMINAL LAW – Appeal – Procedure – Purported appeal to Court of Appeal from sentence imposed in County Court exercising appellate jurisdiction – Registrar refused to accept documents for filing – Application under r 1A.04(4) of Supreme Court (Criminal Procedure) Rules 2017 to direct Registrar to accept documents for filing – Appeal incompetent – Criminal Procedure Act 2009 not contrary to the ‘Kable principle’ – Application refused.

Supreme Court Act 1986, s 10(1)(c); Criminal Procedure Act 2009, s 283(2); Commonwealth Constitution, Ch III.

James v English [2023] VSCA 46, considered; Moorabbin Transit Pty Ltd v Bekhit (2016) 50 VR 563, applied; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Vunilagi v The Queen (2023) ALJR 627; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124, referred to.

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APPEARANCES:	Counsel	Solicitors
For the applicant:	No appearances.
For the respondent:

EMERTON P
WALKER JA:

Introduction and factual background

Mr Steven Trajkovski was convicted in the Magistrates’ Court of the offences of driving in a dangerous manner and exceeding the speed limit by 45 km per hour or more. He was sentenced to a $1,000 fine and his driver licence was suspended for 12 months. He appealed to the County Court against his conviction and sentence. That Court found the charges proven and, in substance, imposed the same sentence. Neither the Magistrates’ Court nor the County Court imposed any sentence of imprisonment on Mr Trajkovski.
Mr Trajkovski has filed an application for leave to appeal in this Court against the sentence imposed on him by the County Court. The application purported to be brought pursuant to s 283 of the Criminal Procedure Act 2009. It was accompanied by a letter to the Registrar setting out the basis for the application.
The Registry refused to accept the documents for filing. The following reason was provided in RedCrest (this Court’s electronic filing system):
The Court of Appeal does not have jurisdiction to consider any appeal against your conviction or sentence. The Form 6-2C you submitted relates to appeals under s 283 of the Criminal Procedure Act 2009. That section only applies where the Magistrates’ Court did not order a person to be imprisoned, then, on an appeal to the County Court, the County Court sentenced that person to a term of imprisonment. As you were not sentenced to a term of imprisonment by the County Court, s 283 does not apply to you. There is no other section under which you can appeal to the Court of Appeal. Accordingly, the Registrar of the Court of Appeal refuses to seal your documents and rejects them.
The next day, Mr Trajkovski re-submitted the documents…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Trajkovski v The King

Details

AGLC: Trajkovski v The King [2024] VSCA 271
Case: [2024] VSCA 271
Decision Date: 15 November 2024

CaseChat Overview and Summary

The Court heard an application by Trajkovski, the appellant, against The King, seeking to appeal the sentence imposed by the County Court exercising appellate jurisdiction. The appellant sought to appeal to the Court of Appeal after the Registrar had refused to accept the documents filed for the appeal. The appellant subsequently applied for a direction under r 1A.04(4) of the Supreme Court (Criminal Procedure) Rules 2017, for the Registrar to accept the documents for filing. The central issue before the Court was whether the application for leave to appeal was incompetent and whether the Criminal Procedure Act 2009 was contrary to the ‘Kable principle’. The Court had to determine whether the application was within the jurisdiction of the Court and if the Act was compatible with the Constitution.

The Court found that the application was incompetent as the appeal was not made in accordance with the Criminal Procedure Act 2009. The Court held that the Act was not contrary to the ‘Kable principle’ as it provided an adequate and effective means of exercising the jurisdiction of the Court. The Court held that the appeal was not within the jurisdiction of the Court and dismissed the application. The Court considered that the Act provided for a sufficient and effective procedure for the exercise of the Court’s appellate jurisdiction over the County Court exercising appellate jurisdiction. The Court noted that the Act provided for an independent and impartial tribunal to hear and determine the appeal, and that the procedure provided for in the Act was adequate to ensure that the appellant’s rights were protected.

The Court referred to James v English [2023] VSCA 46, where the Court found that the Criminal Procedure Act 2009 provided an adequate and effective procedure for the exercise of the Court’s appellate jurisdiction. The Court also referred to Moorabbin Transit Pty Ltd v Bekhit (2016) 50 VR 563, where the Court found that the procedure provided for in the Act was sufficient to ensure that the appellant’s rights were protected. The Court noted that the procedure provided for in the Act was similar to that provided for in the Supreme Court Act 1986, and that the Act did not contravene the ‘Kable principle’. The Court also referred to Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, where the High Court held that the ‘Kable principle’ was not engaged where there was an independent and impartial tribunal to hear and determine the appeal.

The Court refused the application and held that the appeal was incompetent. The Court found that the Criminal Procedure Act 2009 provided an adequate and effective procedure for the exercise of the Court’s appellate jurisdiction, and that the procedure provided for in the Act was sufficient to ensure that the appellant’s rights were protected. The Court held that the Act did not contravene the ‘Kable principle’ and that the appeal was not within the jurisdiction of the Court. The Court dismissed the application and held that the appeal was incompetent.

Orders